Citation Nr: 1009219
Decision Date: 03/11/10 Archive Date: 03/17/10
DOCKET NO. 08-14 081 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to a disability rating in excess of 70 percent
for service connected posttraumatic stress disorder (PTSD)
from October 21, 2005 through October 13, 2008.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
E. D. Anderson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1968 to June
1970.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Waco, Texas.
FINDING OF FACT
From October 2005 through October 2008, the Veteran has
displayed total occupational and social impairment as
evidenced by symptoms such as persistent danger to self or
others; frequent inability to perform activities of daily
living, including maintenance of minimal personal hygiene;
multiple hospitalizations; frequent periods of missed work
and a significant demotion in employment responsibilities;
and severe social isolation.
CONCLUSION OF LAW
The criteria for entitlement to an evaluation of 100 percent
disabling for PTSD have been met from October 21, 2005 to
October 13, 2008. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002);
38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130,
Diagnostic Code 9411 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran was granted entitlement to service connection for
PTSD in a February 2007 rating decision and was assigned an
initial 50 percent disability rating effective October 21,
2005. In a March 2009 rating decision, the Veteran's
disability rating was increased from 50 percent to 70 percent
from October 21, 2005 to October 13, 2008. A 100 percent
disability rating was assigned from October 14, 2008. On
appeal, the Veteran is seeking a disability rating in excess
of 70 percent for the period from October 21, 2005 to October
13, 2008.
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1
(2009). If two evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating; otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7. When reasonable doubt arises as to the degree
of disability, such doubt will be resolved in the Veteran's
favor. 38 C.F.R. § 4.3.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function, will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the Veteran, as well as the entire history of the
Veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
In deciding the Veteran's claim, the Board has considered the
determinations in Fenderson v. West, 12 Vet. App. 119 (1999)
and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether
the Veteran is entitled to an increased evaluation for
separate periods based on the facts found during the appeal
period. In Fenderson, the U.S. Court of Appeals for Veterans
Claims (Court) held that evidence to be considered in the
appeal of an initial assignment of a rating disability was
not limited to that reflecting the then current severity of
the disorder. In that decision, the Court also discussed the
concept of the "staging" of ratings, finding that, in cases
where an initially assigned disability evaluation has been
disagreed with, it was possible for a veteran to be awarded
separate percentage evaluations for separate periods based on
the facts found during the appeal period. Id. at 126. Hart
appears to extend Fenderson to all increased rating claims.
The Veteran's PTSD is rated under the General Rating Formula
for Mental Disorders, found at 38 C.F.R. § 4.130 (2009).
A 70 percent evaluation is warranted where there is
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; intermittently illogical, obscure, or irrelevant
speech; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); and inability to establish and
maintain effective relationships. Id.
A 100 percent evaluation is warranted where there is total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; and memory loss for names of
close relatives, own occupation, or own name. Id.
It is further noted that the nomenclature employed in the
portion of VA's Schedule for Rating Disabilities ("the
Schedule") that addresses service-connected psychiatric
disabilities is based upon the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, of the American
Psychiatric Association (also known as "the DSM-IV"). 38
C.F.R. § 4.130 (2009). The DSM-IV contains a Global
Assessment of Functioning (GAF) scale, with scores ranging
between zero and 100 percent, representing the psychological,
social, and occupational functioning of an individual on a
hypothetical continuum of mental health-illness. Higher
scores correspond to better functioning of the individual.
GAF scores ranging between 61 and 70 are assigned when there
are some mild symptoms (e.g., depressed mood and mild
insomnia), or some difficulty in social, occupational, or
school functioning (e.g., occasional truancy, or theft within
the household), but when the individual is functioning pretty
well and has some meaningful interpersonal relationships.
American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders (4th. ed., 1994).
GAF scores ranging between 51 and 60 are assigned when there
are moderate symptoms (like flat affect and circumstantial
speech, and occasional panic attacks), or moderate difficulty
in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers). Id.
GAF scores ranging between 41 and 50 are assigned when there
are serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting), or any serious
impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job). Id.
GAF scores ranging between 31 and 40 are assigned when there
is some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or
major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family and is unable
to work). Id.
GAF Scores between 21 and 30 are assigned when behavior is
considerably influenced by delusions or hallucinations or
serious impairment in communication or judgment (e.g.,
sometimes incoherent, acts grossly inappropriately, suicidal
preoccupation) or inability to function in almost all areas
(e.g., stays in bed all day; no job, home, or friends). Id.
Symptoms listed in VA's general rating formula for mental
disorders are not intended to constitute an exhaustive list,
but rather are to serve as examples of the type and degree of
the symptoms, or their effects, that would justify a
particular rating. Mauerhan v. Principi, 16 Vet. App. 436
(2002).
According to the applicable rating criteria, when evaluating
a mental disorder, the frequency, severity, and duration of
psychiatric symptoms, the length of remissions, and the
Veteran's capacity for adjustment during periods of remission
must be considered. 38 C.F.R. § 4.126(a) (2009). In
addition, the evaluation must be based on all the evidence of
record that bears on occupational and social impairment
rather than solely on the examiner's assessment of the level
of disability at the moment of the examination. Id.
Further, when evaluating the level of disability from a
mental disorder, the extent of social impairment is
considered, but the rating cannot be assigned solely on the
basis of social impairment. 38 C.F.R. § 4.126(b) (2009).
The Board notes that VA defines substantially gainful
employment as "employment at which non-disabled individuals
earn their livelihood with earnings comparable to the
particular occupation in the community where the veteran
resides." See M21-MR, Part IV, Subpart ii, Chapter
2(F)(24)(d).
In reaching such a determination, the central inquiry is
"whether the veteran's service-connected disabilities alone
are of sufficient severity to produce unemployability."
Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
Consideration may be given to the Veteran's level of
education, special training, and previous work experience
when arriving at this conclusion, but factors such as age or
impairment caused by non-service-connected disabilities are
not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van
Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
The Board notes that marginal employment is not considered to
be substantially gainful employment. Marginal employment
generally shall be deemed to exist when a Veteran's earned
annual income does not exceed the amount established by the
U.S. Department of Commerce, Bureau of the Census, as the
poverty threshold for one person. Marginal employment may
also be held to exist, on a facts-found basis (includes but
is not limited to employment in a protected environment such
as a family business or sheltered workshop), when earned
annual income exceeds the poverty threshold. 38 C.F.R.
§ 4.16(a).
Evidence of record shows that the Veteran was hospitalized in
a VA hospital for five days in September 2005 for suicidal
ideations, which was followed by a week of hospitalization at
a private hospital called Timberlawn. The Veteran was again
hospitalized for ten days in February to March 2006 at Cedars
Hospital and was followed up in a day hospital program at the
same hospital for another month after his discharge. A March
2008 letter from Dr. M.M. states that the Veteran was
hospitalized three times in the past year and placed on
suicide watch. A September 2008 VA treatment record notes
that the Veteran was hospitalized twice for suicidal
ideations at Hickory Trails Hospital.
At a January 2007 VA examination, the Veteran reported, that
following his September 2005 hospitalization, he was demoted
from an accounting position to the mail room. He described a
history of problems with superiors and coworkers at work, as
well as poor performance evaluations. While it appears that
the Veteran was working 37.5 hours at the time of the
examination, he estimated that he had taken 15 to 20 weeks of
medical leave in the past twelve months. The VA examiner
noted that the Veteran was "barely employable" at that
time.
A July 2007 VA treatment record noted that the Veteran was on
temporary paid leave secondary to a "disability." A
treatment note from March 2008 reported that the Veteran had
already used up all of his vacation time for the year. At a
January 2009 VA examination, the Veteran reported that he had
quit his job in July 2008.
VA treatment records for the period in question, as well as
letters from the Veteran's spouse and family, show that when
the Veteran was not working, he spent all of his time in bed
and had to be encouraged by his spouse to perform routine
self care such as showering. These records document
complaints of chronic suicidal and homicidal ideations,
severe depression, anxiety, panic attacks, nightmares,
hypervigilance, numbing, and irritability. They show that
the Veteran was socially isolated and had minimal contact
with other people, including his daughter and two siblings.
He worked alone at work and has no friends. His primary
contact was with his spouse, from whom he had been separated
for long periods of time during their marriage. It appeared
that the Veteran's symptoms were only moderately improved
with medications. However, there was no evidence of gross
impairment in thought processes or hallucinations or
delusions, and the Veteran's insight and judgement had been
described as normal.
The Board finds that there is evidence both for against
assigning a disability rating in excess of 70 percent for the
Veteran's PTSD for the period of October 21, 2005 to October
14, 2008.
On one hand, there is no evidence of gross impairment of
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior;
disorientation to time or place; or memory loss for names of
close relatives, own occupation or own name. Additionally,
the Veteran had intervals during the period in question where
he experienced an improvement in symptoms and was able to
work.
However, the Board must find that, viewing this period as a
whole, the Veteran demonstrated total occupational and social
impairment as evidenced by a persistent danger to self or
others; intermittent inability to perform activities of daily
living, including maintenance of minimal personal hygiene;
and frequent periods of hospitalization for depression and
suicidal ideations. The Veteran was been able to work only
intermittently between October 2005 and October 2008 and when
he did work, it was in a position of greatly reduced
responsibility following a demotion in 2005. His actual
earnings are not of record, which hinders the Board's ability
to determine whether the Veteran earned sufficient income to
be deemed working substantially gainful employment in a legal
sense.
Furthermore, the Veteran consistently suffered from severe
depression and PTSD symptoms that showed no real improvement
despite years of medication and therapy, including numerous
inpatient hospitalizations. He had no friends and no contact
with his family, except for his spouse, on whom it appeared
he was dependent for assistance with activities of daily
living. Based on the above evidence, the Board finds that a
disability rating of 100 percent is warranted from October
21, 2005 to October 13, 2008.
The Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In
this case, the Board is granting in full the benefits sought
on appeal. Accordingly, either the duty to notify or the
duty to assist need not be further discussed.
The Board further notes that compensation at the 100 percent
level has been awarded for the entire appeal period in
question. To the extent that a TDIU claim has been raised,
it need not be addressed or referred as the issue is moot.
See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) ("claim
for TDIU presupposes that the rating for the condition is
less than 100%"); Green v. West, 11 Vet. App. 472 (1998).
ORDER
The appeal is granted.
____________________________________________
T. Mainelli
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs